FAMILY LAW

PROBATE | TRUSTS

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Month: August 2014

Probate is a court-supervised process for identifying and gathering the decedent’s assets, paying taxes, claims and expenses and distributing assets to beneficiaries. Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. Continue reading “Probate Q&A”

Florida residents must sign wills at the end of the document in the presence of at least two witnesses who are both present at the same time and place with the testator (person making the Will), and also signed in the presence of a notary public so that the Will is self-proving in case of death. Self-proving Wills can be admitted to probate after the death of the testator without having the witnesses come to the courthouse. Continue reading “Wills”

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When you lose a loved one, you want to know that his or her estate will be handled respectfully and in a manner in which your family member requested. Estate Planning and Asset Protection involves the careful use of Wills, Trusts, Durable Powers of Attorney, Health Care Surrogate Designations, and Living Wills.

Certain aspects of Estate Planning protect you while living, while other aspects protect you, as well as your family members, upon dying. Proper Estate Planning can accomplish a number of things, such as providing for the care of minor children in the event of an unforeseen disability or death, protect and transfer assets and valuables to loved ones upon dying, and avoid or mitigate estate taxes.

Having a will, along with other essential documents, can lend a great deal of peace of mind to individuals. Everyone’s situation is different, which is something we understand at the Law Offices of Dana Bowie, P.A. Therefore, we will tailor an Estate Plan that’s just right for you.

Probate Law is the legal process in which the assets of a deceased person are passed to his or her heirs. Sometimes, probate is necessary even if there is a Will. Often, assets needing probate may include bank accounts, real estate, IRA’s, as well as other retirement plans, and life insurance policies. Some types of Estate Planning may avoid probate.

We so often hear that hard work is the path to achieving the American dream. But retaining as much of our earnings as possible for our family can be a challenge. An estate planning attorney can help you to ensure that your assets are protected from creditors.

Generally it is possible to effect a name change through legal proceedings or, in some cases, without any legal proceedings at all. The following paragraphs set out the parameters of changing names.

Change of Name Without Any Legal Proceedings:

At common law it is possible to assume another name as long as there is no fraudulent reason for doing so. Florida law does not prohibit someone from using a different name than the one they were given at birth. There are restrictions on the use of fictitious names, however.

A woman’s name is changed by marriage and the marriage itself will serve to change her name on government records. There is no requirement for a court proceeding. A woman cannot be compelled to adopt her husband’s surname but if she does, she can keep that name for as long as she wishes, even after the marriage has ended by death, dissolution or annulment. She cannot be compelled to adopt her maiden name after the marriage ends. Also, she can change her name back to her maiden name after the marriage if she wants.

The name of a child born out of wedlock may be changed if the mother and father later marry and they both request a change and there is no father’s name on the birth certificate. The name of a child can also be changed if both mother and father sign an affidavit acknowledging their paternity. Or, the father can sign an affidavit voluntarily acknowledging his paternity. This will also result in a change of name for the child. If the father’s name is listed on the birth certificate, however, both mother and father must resort to legal proceedings to change the name of the child and to change the name on the birth certificate.

Change of name as a result of legal proceedings:

Name changes can occur as a result of legal proceedings such as adoption, dissolution of marriage, annulment or establishment of paternity. In these cases, the name change is a part of the legal proceeding and no separate proceeding is required.

Change of name through formal proceedings:

F.S. 68.07 sets out the procedure for a formal change of name. Generally this can be done if there is no illegal or fraudulent motive. A petition is filed along with a set of fingerprints of the person requesting the name change. The petition must allege the reason for the request and show the court that there is no fraudulent motive for the name change. The petition must contain detailed information about the petitioner’s credit history and criminal records, if any.

Note: This article discusses name changes through legal proceedings in a family law context and does not cover corporate names, fictitious names or professional names. These are all governed by separate statutes.

F.S. 382.013 provides that the birth certificate serves as a legal document indicating an initial determination of paternity for all children born during a marriage.

F.S. 741.10 provides for a voluntary acknowledgment of paternity. Paternity may also be voluntarily acknowledged by signing an affidavit along with the birth certificate. This creates a rebuttable presumption of paternity.

Judicial And Administrative Proceedings

F.S. 742. 011 provides that any woman who is pregnant or has a child, any man who has reason to believe that he is the father of a child, or any child may bring proceedings in the circuit court to determine the paternity of the child when paternity has not been established by law or otherwise.

Note that scientific testing to determine paternity can be ordered by a court on its own motion or can be compelled by one of the parties. Blood tests are not automatically admissible. See F.S. 742.12 regarding blood tests.

The Best Interests Of The Child Is Controlling

Case law interpreting the above statutes provides that once children are born legitimate, they have the right to maintain that status. In cases where one party trying to question the legitimacy of the child it must be proven by clear and convincing evidence that it is in the best interests of the child to overcome the presumption of legitimacy.

Custody And Support

The issues of custody and support of an illegitimate child are controlled by the general Florida Statutes regarding shared parental responsibility ( F.S. 61.13) and child support ( F.S. 61.30) The courts generally have the power to order child support and to establish visitation.

F.S. 742.031 provides that if a paternity order is entered without a specific ruling on custody, but the order contains an award of child support or visitation, it is presumed to award primary residential care to the parent receiving support or the parent that was not granted visitation without prejudice.

Dis-Establishment Of Paternity

Florida statute 742.18 provides a detailed procedure by which a male may disestablish paternity or terminate child support. A petition must be filed stating that there is newly discovered evidence since the initial determination of paternity and the petitioner must provide scientific testing results that are less than 90 days old or request in the petition that testing be done and the petitioner must also file an affidavit stating that he is current in his child support or that any delinquency arose from inability to pay for just cause.

The statute goes on to provide a list of factors all of which must be present for the court to make a finding of disestablishment of paternity;

newly discovered evidence has come to light;

the scientific testing was properly conducted;

the male ordered to pay child support is current on all child support payments or that the male ordered to pay child support has substantially complied with his child support obligation and that any delinquency in his child support arose from his inability to pay for just cause;

the male ordered to pay child support has not adopted the child;

the child was not conceived by artificial insemination while the male ordered to pay child support and the child’s mother were in wedlock;

the male ordered to pay child support did not act to prevent the biological father of the child from asserting his parental rights with respect to the child;

the child was younger than 18 years of age when the petition was filed.The court may not disestablish paternity if the male engaged in the following conduct after learning that he is not the father of the childmarried the mother of the child and voluntarily assumed the parental obligation and duty to pay child support;

acknowledged the paternity of the child in a sworn statement;consented to be named as the child’s biological father on the child’s birth certificate;voluntarily promised in writing to support the child and was required to support the child based on that promise;

received written notice from any state agency or any court directing him to submit to scientific testing which he disregarded;

signed a voluntary acknowledgment of paternity as provided in F.S. 741. 10(4)

Gestational Surrogacy Contracts

If you wish to enter into a contract for gestational surrogacy, you must comply with the provisions of F.S. 742.15 and F.S. 742.16. Basically F.S. 742.15 provides that the surrogate must be 18 years of age or older and that the commissioning couple are legally married and are both 18 or older.

The statute permits these kinds of contracts only when a physician certifies that the commissioning mother cannot carry a pregnancy or the pregnancy will cause a risk to her health or the pregnancy will cause a risk to the health of the fetus.

The contract itself must provide that the surrogate will be the sole source of consent with respect to clinical intervention and management of the pregnancy and that the surrogate agrees to submit to reasonable medical evaluation and treatment and to adhere to reasonable medical instructions. The surrogate further must agree to relinquish any parental rights unless it is determined that neither member of the commissioning couple is the genetic parent of the child. The commissioning couple must agree to accept custody and to assume full parental rights and responsibilities for the child immediately upon the child’s birth regardless of any impairment of the child unless neither of them is the genetic parent.

F.S. 742.16 provides that the commissioning couple may petition the court for an expedited affirmation of parental status within 3 days of the birth of the child.

Relocation has become an important and often contested part of dissolution proceedings. In our society many people have to relocate. The Florida statutes define relocation as “a change in the principal residence of a parent of at least 50 mile for at least 60 consecutive days”. This does not include temporary absence for vacation, education or the provision of health care for the child.

Both parents can agree in writing to the relocation as long as the agreement reflects their consent to the relocation and spells out a time sharing plan for the non relocating parent along with any transportation arrangements needed for visitation. You must seek ratification of the agreement by the court. There may not have to be a hearing unless one is requested. If both parents cannot agree then the statutes provide for the court to make the decision.

Florida has changed the relocation statute to eliminate the requirement that a notice of relocation be filed before a petition to relocate is filed in court. Now, in the absence of an agreement between the parents, a parent seeking relocation files a court petition immediately and must serve it on the other parent. The other parent has 20 days to file a written response to the court just as in any other court proceeding. The court then schedules a hearing.

There is no presumption for or against any relocation. The factors that a court will consider in determining whether to allow the relocation are set out in the statute 61.13001.

Failure to follow this procedure and removal of the child without permission subjects you to contempt of court and other proceedings to compel return of the child.

If you are faced with this situation I strongly recommend that you consult the attorney of your choice.

As you probably know, Congress passed at the 11th hour the American Taxpayer Relief Act of 2012 (the 2012 Tax Act), signed into law by the President on January 2, 2013. The 2012 Tax Act makes several important revisions to the tax code that will affect estate planning for the foreseeable future. What follows is a brief description of some of these revisions and their impact:

The federal gift, estate and generation-skipping transfer tax provisions were made permanent as of December 31, 2012. This is great news for all Americans; for more than ten years, we have been planning with uncertainty under legislation that contained built-in expiration dates. And while “permanent” in Washington only means that this is the law until Congress decides to change it, at least we now have more certainty with which to plan.
The federal gift and estate tax exemptions will remain at $5 million per person, adjusted annually for inflation. In 2012, the exemption (with the adjustment) was $5,120,000. The amount for 2013 is expected to be $5,250,000. This means tliat the opportunity to transfer large amounts during lifetime or at death remains. So if you did not take advantage of this in 2011 or 2012, you can still do so ó and there are advantages to doing so sooner rather than later. Also, with the amount tied to inflation, you can expect to be able to transfer even more each year in the future.

The generation-skipping transfer (GST) tax exemption also remains at the same level as the gift and estate tax exemption ($5 million, adjusted for inflation). This tax, which is in addition to the federal estate tax, is imposed on amounts that are transferred (by gift or at your death) to grandchildren and others who are more than 37.5 years younger than you; in other words, transfers that “skip” a generation. Having this exemption be “permanent” allows you to take advantage of planning that will greatly benefit future generations.

Married couples can take advantage of these higher exemptions and, with proper planning, transfer up to $10+ million through lifetime gifting and at death.
The tax rate on estates larger than the exempt amounts increased from 35% to 40%. The “portability” provision was also made permanent. This allows the unused exemption of the first spouse to die to transfer to the surviving spouse, without having to set up a trust specifically for this purpose. However, there are still many benefits to using trusts, especially for those who want to ensure that their estate tax exemption will be fully utilized by the surviving spouse.

Separate from the new tax law, the amount for annual tax-free gifts has increased from $13,000 to $14,000, meaning you can give up to $14,000per beneficiary, per year free of federal gift, estate and GST tax- in addition to the $5 million gift and estate tax exemption. By making annual tax-free transfers while you are alive, you can transfer significant wealth to your children, grandchildren and other beneficiaries, thereby reducing your taxable estate and removing future appreciation on assets you transfer.
And, you can significantly enhance this lifetime giving strategy by transferring interests in a limited liability company or similar entity because these assets have a reduced value for transfer tax purposes, allowing you to transfer more free of tax.

For most Americans, the 2012 Tax Act has removed the emphasis on estate tax, planning and put it back on the real reasons we need to do estate planning: taking care of ourselves and our families the way we want. This includes

Protecting you, your family, and your assets in the event of incapacity;
Ensuring your assets are distributed the way you want;
Protecting your legacy from irresponsible spending, a child’s creditors, and from being part of a child’s divorce proceedings;
Providing for a loved one with special needs without losing valuable government benefits; and
Helping protect assets from creditors and frivolous lawsuits. For those with larger estates, ample opportunities remain to transfer large amounts tax free to future generations, but it is critical that professional planning begins as soon as possible.
With Congress looking for more ways to increase revenue, many reliable estate-planning strategies may soon be restricted or eliminated. Thus, it is best to put these strategies into place now so that they are more likely to be grandfathered from future law changes.

Further, as is well publicized, the 2012 Tax Act included several income tax rate increases on those earning more than $400,000 ($450,000 for married couples filing jointly). Combined with the two additional income tax rate increases resulting from the healthcare bill, income tax planning is now more important than ever.

If you have been sitting on the sidelines, waiting to see what Congress would do, the wait is over. Now that we have increased certainty with “permanent” laws, there is no excuse to postpone your planning any longer.